Part 7Servitudes
Positive servitudes
C1C2C3C4C5C775Creation of positive servitude by writing: deed to be registered
C61
A deed is not effective to create a positive servitude by express provision unless it is registered against both the benefited property and the burdened property.
2
It shall be no objection to the validity of a positive servitude that, at the time when the deed was registered as mentioned in subsection (1) above, the same person owned the benefited property and the burdened property; butF1... the servitude shall not be created while that person remains owner of both those properties.
3
Subsection (1) above—
a
is subject to section 3(1) of the Prescription and Limitation (Scotland) Act 1973 (c. 52) (creation of positive servitude by 20 years' possession following execution of deed); and
b
does not apply to servitudes such as are mentioned in section 77(1) of this Act.
76Disapplication of requirement that positive servitude created in writing be of a known type
1
Any rule of law that requires that a positive servitude be of a type known to the law shall not apply in relation to any servitude created in accordance with section 75(1) of this Act.
2
Nothing in subsection (1) above permits the creation of a servitude that is repugnant with ownership.
77Positive servitude of leading pipes etc. over or under land
1
A right to lead a pipe, cable, wire or other such enclosed unit over or under land for any purpose may be constituted as a positive servitude.
2
It shall be deemed always to have been competent to constitute a right such as is mentioned in subsection (1) above as a servitude.
78Discharge of positive servitude
A positive servitude—
a
which has been registered against the burdened property; or
b
which has been noted in, or otherwise appears in, the title sheet of that property,
is discharged by deed only on registration of the deed against the burdened property.